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Welcome to the Snell & Wilmer Benefits Blog. We will be posting about current employee benefits and executive compensation topics and issues. We invite you to contact the authors with your thoughts or questions.Blog Contributors
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Updated Glass Lewis Proxy Voting Guidelines
I previously blogged about certain compensation related updates to ISS’ proxy voting guidelines for 2020. With proxy season in full swing, I wanted to highlight some important compensation related changes to the Glass Lewis 2020 voting guidelines, a full copy of which can be found here.
- Contractual Payments and Arrangements. In their 2020 guidelines, Glass Lewis clarifies its policy for say-on-pay proposals with respect to the analysis of both ongoing and new contractual payments and executive entitlements. In particular, Glass Lewis has provided a list of certain executive employment terms that may result in a negative say-on-pay vote recommendation, which includes, but is not limited to: (i) excessively broad change in control triggers; (ii) inappropriate severance entitlements; (iii) inadequately explained or excessive sign-on arrangements; (iv) guaranteed bonuses (especially multi-year guarantees); and (v) the failure to address any concerning practices in amended employment agreements.
Posted in Executive Compensation
| Tagged change in control, compensation, discretion, Glass Lewis, incetnvei plans, ISS, proxy, shareholder
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ISS Expands List of Egregious Equity Plan Factors
As reported in prior blogs, Institutional Shareholder Services Inc. (“ISS”), a leading proxy advisory firm, uses a proprietary “Equity Plan Scorecard” approach to evaluate public company equity compensation plans and will recommend a “for” or “against” vote depending on a combination of plan features, plan cost, company grant practices, etc. Last week ISS issued its Proxy Voting Guideline Updates for 2020, which are generally effective for meetings on or after February 1, 2020 (“2020 Update”). The 2020 Update, among other things, makes changes to the current Equity Plan Scorecard.
Regardless of how a plan scores under the current Equity Plan Scorecard, ISS will generally recommend a vote against a plan proposal if any of the following egregious factors apply: (i) accelerated vesting pursuant to a liberal change in control definition; (ii) provisions that permit the repricing and/or cash out of underwater options or stock appreciation rights without shareholder approval, (iii) provisions that make a plan a vehicle for problematic pay practices or create a pay for performance disconnect, (iv) the plan is excessively dilutive to shareholder holdings, or (v) the plan contains other features that have a significant negative impact on shareholder interests. Read More ›
Posted in Employee Benefits, Qualified Retirement Plans
| Tagged 2020, Glass Lewis, guideline update, ISS, problematic pay practices, Proxy voting
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DOL Finalizes Regulations Requiring Electronic Filing of Top Hat Statements
On June 17th the Department of Labor finalized a set of proposed regulations requiring that all “top hat” plan statements be filed with the Department electronically though this website. As brief background, a “top hat” statement is a one-time filing made with the Department of Labor to protect against a non-qualified plan established for a select group of management or highly compensated employees becoming subject to some of the more onerous requirements of ERISA. Accordingly, to maintain this protection, effective August 16, 2019, “top hat” filings must be made electronically.
The Department introduced the proposed regulations on the electronic filings in September 2014 and has indicated that since the release of the proposed regulations 54% of the “top hat” filings received have been made electronically. Read More ›
Posted in Executive Compensation
| Tagged DOL, ERISA, non-qualified plan, top hat statement
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Director Compensation Update
I’ve written a number of articles and blogs about some sticky issues that can surface in the context of setting pay for public company non-employee directors (here, here, here, and here).
On March 6th the parties to the In re Investors Bancorp, Inc. Stockholder Litigation, filed a settlement agreement with the Delaware Chancery Court. By way of background, the Investors Bancorp decision limited the shareholder ratification defense for non-employee director equity awards that were granted on a discretionary basis. The equity plan at issue in In re Investors Bancorp, which had been approved by the company’s shareholders, provided that the maximum number of shares that could be delivered to all non-employee directors, in the aggregate, would be capped at 30% of all option or restricted stock unit or restricted stock awards available for grant under the plan. Read More ›
Posted in Employee Benefits, Executive Compensation
| Tagged business judgment rule, director equity awards, equity awards, Executive Compensation, Investors Bancorp
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Certain Information Statements for ISOs and ESPPs Due by January 31, 2019
As reported in Part 4 of our 2018 End of Year Plan Sponsor “To Do” List, Section 6039 of the Code requires employers to provide a written information statement to each employee or former employee and file information returns with the IRS regarding: (1) the transfer of stock pursuant to the exercise of an Incentive Stock Option (“ISO”); and (2) the first transfer by the employee or former employee of stock purchased at a discount under an Employee Stock Purchase Plan (“ESPP”). For ISO exercises and ESPP transfers occurring in 2018, the Section 6039 employee information statement requirement is satisfied by providing Form 3921 (for ISOs) and Form 3922 (for ESPPs) to employees no later than January 31, 2019. Read More ›
Posted in Employee Benefits, Executive Compensation
| Tagged 2019, deadline, Employee Stock Purchase Plan, ESPP, Incentive Stock Option, information returns, ISO, January 31, stock
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IRS Updates Retirement Plan Correction Procedures
On September 28, 2018, the IRS released Revenue Procedure 2018-52. The Revenue Procedure makes changes to the IRS Employee Plans Compliance Resolution System (“EPCRS”), which is the IRS’ comprehensive correction program for qualified retirement plans. The primary purpose of the Revenue Procedure is establishing the process for filing correction applications and paying the applicable user fee through the www.pay.gov website.
Beginning April 1, 2019, the IRS will no longer accept paper applications meaning that plan sponsors are required to use pay.gov to submit their application and pay their user fees. During a transition period running from January 1 – March 31, 2019, plan sponsors may, but are not required to, file their EPCRS applications online. Read More ›
Posted in Qualified Retirement Plans
| Tagged EPCRS, Form 8950, Revenue Procedure 2018-52
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Settlement of Solak v. Barrett May Provide Additional Guidance on Setting Director Pay
I’ve stressed how important it is for public company executives and directors to stay apprised of developments in the director pay area, including developments/settlements of director pay lawsuits. Earlier this summer, the Delaware Chancery court approved a settlement of Solak v. Barrett, a case in which the plaintiffs alleged that the directors of Clovis Oncology breached their fiduciary duties by adopting a compensation plan that overcompensated themselves, in relation to companies of comparable market capitalization and size. In their complaint, the plaintiffs cited as evidence, the fact that the non-employee directors of Clovis each had been paid an average of $429,163 annually between 2012 and 2016, while Fortune 50 companies pay their directors a median total of $281,667 a year and S&P 500 companies pay an average $277,237 a year. Read More ›
Posted in Employee Benefits, Executive Compensation
| Tagged award, Clovis, compensation, director, settlement, shareholder
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Yet Another Reason to Focus on Director Pay
We have previously encouraged our readers to focus on the size of their director pay packages and the processes their boards undertake in setting director compensation. Prior focus on these issues was recommended largely as a way to mitigate the risk of litigation for excessive pay. In their current U.S. Compensation Policies FAQ, Institutional Shareholder Services Inc. (“ISS”) has given boards yet another reason to focus on director compensation. In the FAQ, ISS indicates the following:
- In evaluating non-employee director pay, ISS will look for “reasonable practices” that “adequately align the interests of directors to those of shareholders.”
- A director pay program should incorporate “meaningful” stock ownership and/or holding requirements.
Posted in Executive Compensation
| Tagged compensation, director, director pay, Institutional Shareholder Services, ISS
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Short-Term Deferral Day is Right Around the Corner
Section 409A, the provision of the Internal Revenue Code that regulates the time and form of payment of nonqualified deferred compensation, contains a helpful exception for “short-term deferrals.” Specifically, Section 409A provides that a payment will not be considered nonqualified deferred compensation if the employer makes the payment on or prior to the 15th day of the third month following the end of the employee’s (or, if later, the employer’s) taxable year in which the employee’s right to the payment vests. For individuals and for employers with calendar fiscal years, the key date for purposes of the short-term deferral exception is March 15th (a little less than two weeks from today). Read More ›
Posted in Employee Benefits, Executive Compensation
| Tagged 409A, deferral exception, March 15, Section 409A, short-term deferral
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Certain Information Statements for ISOs and ESPPs Due by January 31, 2018
As reported in Part 3 of our 2016 End of Year Plan Sponsor “To Do” List, Section 6039 of the Code requires employers to provide a written information statement to each employee or former employee and file information returns with the IRS regarding: (1) the transfer of stock pursuant to the exercise of an Incentive Stock Option (“ISO”); and (2) the first transfer by the employee or former employee of stock purchased at a discount under an Employee Stock Purchase Plan (“ESPP”). For ISO exercises and ESPP transfers occurring in 2017, the Section 6039 employee information statement requirement is satisfied by providing Form 3921 (for ISOs) and Form 3922 (for ESPPs) to employees no later than January 31, 2018. Read More ›
Posted in Employee Benefits, Executive Compensation
| Tagged ESPP, filing, Form 3921, Form 3922, IRS return, ISO, Section 6039
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